This topic will consider whether judges in the State of Florida will follow the law involving criminal sex charges that society considers heinous. Remember, each case involving a sex charge is different and must be reviewed on its own merit. The principal question here is whether judges differentiate between the admittance of evidence in a serious sex charge versus a lesser non-sex charge. The simple answer is, “they should.” However, an experienced attorney who handles sex charges will tell you that many judges will look for any reason to admit evidence and hold the defendant accountable. So, what does this mean? The clearest way to explain this is from a recent hearing in Orange County, Florida in State v. Green (2018-CF-16350-A-O).
The main issue in this case revolved around whether consent given by a third party would allow law enforcement to seize the property of the defendant. In simple terms, the police knock at your door, and someone else who lives at the residence allows the police to search your things. What was ultimately found was the basis for very serious charges to be brought and should that evidence be suppressed, then the State would have no ability to prosecute further. That’s a tall order for any judge, but if the defense presents its evidence properly, the facts are established without question, and the law is outlined thoroughly, then the Court must and will follow the law.
Attorney Anton Nace represented Mr. Green, who was charged with multiple counts of unlawful possession of materials depicting a sexual performance by a child and sexual battery on a child under 12. The police seized evidence at his residence, and this was allowed by a resident of his home when they allowed the police to enter, search, and retrieve personal property belonging to Mr. Green. Importantly, the third party was asked by the officer to retrieve any electronics Mr. Green owned and bring them to the officer executing the search. So, what is so tricky with this issue? Standing. Standing is an issue often overlooked by other attorneys but here, it became a very important detail that allowed Mr. Green to prevail on the motion to suppress. In order to raise a 4th Amendment, claim of an unreasonable search and seizure, a defendant must have standing. That is, the defendant must demonstrate a right to privacy in the particular item searched and seized.
While there are times that this issue is often stipulated, Attorney Nace chose to have Mr. Green testify and specifically lay out the facts that established a right to privacy over individual items seized that were his. For example, the phone where all the evidence was found, was itself under lock by a code only known to Mr. Green. The phone account was paid for by Mr. Green and had no other users associated with it. Mr. Green established that no one had consent to use his phone or otherwise take it anywhere. Additionally, on cross-examination of the officer who violated Mr. Green’s 4th Amendment rights, Mr. Nace demonstrated that law enforcement knew this item was not the property of the third party granting consent to take it. Getting consent to search the house from the third party, while viable, did not extend to another person’s personal property under “lock and key” so to speak.
What these details did was defeat any State argument that general consent to the search of the home included items that were demonstrably not owned or otherwise controlled by the third party. There was simply no way to wiggle around what was factually established and not contradicted in any way. As a result, the Judge followed the law. The Motion to Suppress was granted and the State ultimately dismissed the case having no evidence with which to move forward.
Every case and every situation is different. In the case we discussed, Attorney Anton Nace thoroughly laid out and proved that law enforcement violated the search and seizure laws and the Judge had no choice but to exclude the evidence. It is always best to have a lawyer who is experienced and detailed enough to anticipate the issues and evidence in the case several moves ahead. Only with this type of representation will you be secure in knowing that everything has been considered when fighting for your best interests. If you have any questions, contact the Law Offices of Adams & Luka, P.A., and we can schedule a consultation for you with Attorney Nace.